Dooley v. Mcgillicudy

OPINION FILED MARCH 18, 1976.

JAMES A. DOOLEY, PLAINTIFF,

v.

HELEN F. MCGILLICUDY, JUDGE, ET AL., DEFENDANTS.

Original petition for mandamus.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

We granted leave to plaintiff, James A. Dooley, to file an original action for writ of mandamus. (Ill. Rev. Stat. 1973, ch. 110A, par. 381.) After oral argument of this cause on January 19, 1976, we "ordered that a writ of mandamus issue to the County Officers Electoral Board of Cook County commanding the members of that board [defendants herein] to expunge their order sustaining objections to the nominating papers of James A. Dooley for the office of judge of the Supreme Court; to enter an order denying said objections; and to transmit to the State Board of Elections a certified copy of its ruling in the manner provided by section 10-10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 10-10). An opinion stating the reasons for this order will be filed." We now express those reasons.

Plaintiff filed his nominating petitions on December 15, 1975. Five days later Michael J. Cunningham, a citizen and legal voter in the First Judicial District, filed objections thereto. On January 7, 1976, a majority of the County Electoral Board orally sustained the objections and on January 13 issued its written majority decision striking plaintiff's name from the ballot because his "[n]omination petitions fail to contain a statement that the persons signing are qualified primary electors of, members of, or affiliated with the Democratic Party, and [certain pages] do not contain a sworn statement by the [petition] circulators that persons signing the sheets were qualified voters of the Democratic Party" and are therefore in violation of section 7-10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 7-10). This statutory provision reads in pertinent part:

"The name of no candidate for nomination, or State central committeeman, or township committeeman, or precinct committeeman, or ward committeeman or candidate for delegate or alternate delegate to national nominating conventions, shall be printed upon the primary ballot unless a petition for nomination has been filed in his behalf as provided in this Article in substantially the following form:

We, the undersigned, members of and affiliated with the ____ party and qualified primary electors of the ____ party, in the ____ of ____ in the county of ____ and State of Illinois, do hereby petition that the following named person or persons shall be a candidate or candidates of the _____ party for the nomination for (or in case of committeemen for election to) the office or offices hereinafter specified, to be voted for at the primary election to be held on the ___ day of ___ A.D. ____

Name ________________ Address ____________

State of Illinois ) ) ss. County of __________)

I, _____, do hereby certify that I am upwards of the age of 18 years, that I reside at No. ______ street, in the _____ of _____, county of ____ and State of Illinois, and that the signatures on this sheet were signed in my presence, and are genuine, and that to the best of my knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the _________ party, and that their respective residences are correctly stated, as above set forth.

___________

Subscribed and sworn to before me this ______ day of ______ A.D. ____

___________

At the bottom of each sheet of such petition shall be added a statement signed by an adult resident of the political division for which the candidate is seeking a nomination, stating his residence address (and if resident of a city having a population of over 10,000 by the then last preceding Federal census, also stating the street and number of such residence), certifying that the signatures on that sheet of the petition were signed in his presence, and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought. Such statement shall be sworn to before some officer authorized to administer oaths in this State.

For the purpose of determining eligibility to sign a petition for nomination or eligibility to be a candidate under this Article, a `qualified primary elector' of a party (1) is an elector who has not requested a primary ballot of any other party at a primary election held within 2 years of the date on which the petition must be filed or (2) is a first-time voter in this State registered since the last primary of an even numbered year preceding the date on which the petition must be filed, but no such person may sign petitions for or be a candidate in the primary of more than one party. However, in the case of the first primary following the election at which a party first qualifies as a `political party', as defined in Section 7-2, a `qualified primary elector' of such party is an elector who has not requested a primary ballot of any other party at any primary election held within 2 years of the date on which the petition must be filed." Ill. Rev. Stat. 1973, ch. 46, par. 7-10.

We have been urged by the objector that the relief requested is not appropriate to mandamus. It was basically the position of the objector that, if plaintiff is aggrieved by a decision of the Electoral Board, he may seek judicial review of the matter in the circuit court (Ill. Rev. Stat. 1973, ch. ...

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